Esteemed President of the Court of Justice of the European Union,
Honourable Madam President of the Constitutional Court,
Honourable Rector of University of Latvia,
Esteemed Dean of the Faculty of Law,
Dear ladies and gentlemen,
Dear professors and students of the University of Latvia Faculty of Law,
I
In my today's speech I would like to give my opinion on Satversme (Constitution), the role and influence of constitutional institutions on political system of Latvia which stems from our constitution.
State is the common concern of the people, their collective responsibility and it requires collective engagement. Every citizen is entitled to and, I would even like to stress, obliged to engage in the governing of the state.
Participation of all citizens in the governing of the state and equal responsibility for their state is typical to modern, democratic states that are governed by the rule of law and belong to the European cultural space and Western legal tradition.
Citizens of Latvia play a special role in Latvia's political and constitutional system. In my opinion this special role could be compared to that of a public service. Our citizens are not just living, working and studying here, they also have certain responsibilities and rights linked to collective governing of the state. Satversme gives the citizens of Latvia extensive rights to determine Latvia's policies and thus ensure better decision-making.
Let me emphasise that the body of people (Latvian citizens), approximately 1.5 million citizens with voting rights, represents a constitutional body and a government body from which all other institutions are derived. Citizens are not just individual voters taking part in elections. In our legal system the body of citizens forms a single constitutional body which is also a legislative body the same way as its representative Saeima (Parliament). Body of people holds legislative power that enables it to revoke adopted laws. Such powers are more extensive than that of the parliament. People can also exercise their legislative power independently of the parliament and initiate the adoption of laws. Body of people is a collective body which does not consist of 100 people like the parliament or 14 members as the Cabinet of Ministers. It represents 1.5 million people who have their unique decision-making powers. Such decisions concern both the legislation and other matters. Body of people plays a vital role in deciding the future of our state. For instance, people decide whether to join the European Union and also other matters.
We must ask ourselves whether the body of people can go beyond the constitution? There are some who think that the body of people or all the voters can make any decisions they like. Such argument is flawed and should be discarded. Body of people is a governing body that acts in scope of the constitution. In other words, Satversme gives the body of people certain rights which can be used by it as it sees fit solely in the framework of Satversme. The scope of such rights is defined by a number of paragraphs of Satversme. In other words, body of people cannot act against the constitution in a manner that is unconstitutional. It means that people do not have the right to vote for any legislative initiative they want, do not have the right to adopt any decisions they like. Body of people can only adopt decisions that fall in line with Satversme.
We have not yet designated institution for evaluating laws adopted by the body of people from the perspective of constitutionality. However, it is my belief that general legal principles and Satversme provisions on referenda provide that it is the Constitutional Court which is entitled to validate the decisions of the body of people. It should verify both the decisions adopted by the body of people and legislative initiatives proposed by it. Constitutional Court should verify whether the matter in question can be put to referendum. It is the constitutional role of the Constitutional Court as the guardian of the rule of law. Even if the matter concerns the body of people. So, the body of people is one of the constitutional institutions of the Republic of Latvia and in constitutional theory it is what we call pouvoir constitué (public power) and not the pouvoir constituant (constituent power). In other words, it is a constituted body, not a constituent body. Satversme does not define bodies of constituent power because such power predates Satversme and is superior to it. It is a revolutionary force that establishes new legitimacy which is not subject to Satversme. No country has regulation on such power. Constitutions have always been based on legitimacy that predates the constitution itself, legitimacy that often results from a revolutionary act. Such revolutionary acts, of course, define fundamental principles of the constitution. In case of Latvia these principles are defined in basic acts of 18 November 1918 on the founding of the Republic of Latvia as a democratic and national state governed by the rule of law. Our constitution is, therefore, based on these underlying principles. And the unique role of the body of people is construed strictly in the context of the constitution.
I specifically elaborated on the constitutional role of the body of people because Latvian citizens have unique constitutional role in our constitutional system compared to most European countries. There are certain similarities to that of the Swiss constitution. These similarities are no accident because several of the authors of Satversme lived in exile in Switzerland before the proclamation of the Republic of Latvia and considered that such unique role of the body of people would also be suitable for the Latvian model.
II
Let me now switch my focus to constitutional institutions and underline that Latvia has six such constitutional bodies. I already mentioned the body of people, on top of that we also have the President of Latvia, Saeima (Parliament), Cabinet of Ministers, Constitutional Court, Supreme Court and the State Audit Office. These constitutional bodies act on behalf of the abstract legal entity or the Republic of Latvia. State of Latvia acts through these constitutional institutions and, according to Satversme, government functions are divided between these six bodies. According to Satversme, each of these constitutional bodies holds a part of government power and 100% of such limitless power belong to these six institutions collectively.
There are two reasons why I want to focus on the role of these constitutional institutions. There are certain implications on several areas, including funding models, budget planning, internal organisational autonomy. As regards to funding models, state budget is adopted by the Saeima. Parliament adopts the consolidated budget and decides on the allocation of funding in various budget lines. However, our constitutional system implies that Saeima cannot form the budget at its own discretion and it needs to ensure that all constitutional bodies can fulfil their functions. This means that Saeima cannot allocate the bare minimum to any of such constitutional institutions and thus threaten their ability to perform their constitutional functions. That is what objective law implies, and in such cases Constitutional Court can exercise its scrutiny to guarantee that the budget law is constitutional and ensures that constitutional bodies have the capacity to implement their core functions. Constitutional bodies, of course, differ from all other public bodies that can be established or dissolved and whose budgets can either be increased or decreased at the discretion of the parliament. Saeima does not have the power to allocate constitutional bodies funding which does not ensure the implementation of functions performed by these institutions.
The other reason is internal organisational autonomy. Each of these six constitutional bodies has organisational autonomy to decide on its internal organisation. That is the fundamental principle. However, by dividing and not just automatically separating the power between these six constitutional bodies we have ensured the balance of power and internal autonomy. This is the main distinction between constitutional bodies and all other government institutions that do not have such internal organisational autonomy. Such autonomy comes from Satversme which sets out the system of public administration.
There are also other notable distinctions. Constitutions of many countries clearly specify the scope of competence of, for example, the cabinet and parliament. Satversme does not. Latvia has not set down the responsibilities of either Cabinet of Ministers, Saeima or the body of people. Scope of competence of other constitutional institutions has also not been defined. However, we clearly know the principles for establishing who is in charge of new government competencies and responsibilities. If there is no law and competencies are not specifically assigned, Cabinet of Ministers has the prerogative. So, if there is an unprecedented case which is not regulated by the law, Cabinet of Ministers has the power to find quick and efficient solution. It is the so-called 'reserve power' of the Cabinet. Except cases when legislation explicitly assigns any given competence to particular body, Cabinet of Ministers must carry out full responsibility for the whole government. The purpose of the reserve power is to ensure that the state does not come to a standstill. There cannot be areas that are not regulated by law or without a competent authority. It will always be a part of Cabinet's mandate. Cabinet always has the upper hand.
Parliament comes next. Saeima can adopt laws to regulate any matters. There is, however, a matter of efficiency, but it is a minor issue. Parliament can regulate any issues through law and reassign competencies from the Cabinet of Ministers to other state authorities.
And then comes the body of people. Citizens can petition to revoke laws adopted by the Saeima or change the existing rules. Such hierarchy is not describer expressis verbis in Satversme. Such hierarchy is established by the public administration structure defined in our constitution. There are six government bodies that are collectively responsible for the functions of the state at all times and under any circumstances. Even in cases when they are not explicitly required to do so by the law. It must be done to ensure that the state is effective at all times. It is also interesting to see what happens in circumstances unforeseen by our constitution, in cases when all six of these constitutional institutions lose their capacity to act. That is what happened during the 50 years of occupation. These constitutional government bodies actually seized to exist. By the way, there was no government in exile as was the case for many countries occupied during the World War II, including Luxembourg, Belgium, Estonia and Norway. We did not have such constitutional body that would continue to function under emergency circumstances. We did, however, have two government bodies that continued to work - Latvia's diplomatic missions in London and Washington. On 13 May 2010, Constitutional Court of Latvia adopted a very important retroactive judgement which settles the scope of mandate and competence of these two government bodies. According to the judgement, given the gravity of circumstances, when there are no higher institutions such as constitutional bodies, any government body is not only entitled, but also required to act according to the unwritten principle of Raison d' état. Government institutions have to continue fulfilling their government functions even if the law does not require to do so or even stipulates otherwise. I am talking about double citizenship that was not provided in Latvia's Citizenship Law of the 1919. But diplomatic service that resided outside Latvia allowed double citizenship because our constitution provides that under such exceptional circumstances, when our state would no longer have its citizens, its further continuity would be threatened. It was concluded that in such cases the principle of Raison d' état prevails over the letter of the law and the fact that these diplomatic missions acted against the law. This principle is actually embedded in the political system established by Satversme.
III
When it comes to constitutional institutions established by Latvia there is always a question of what needs to be improved. On the one hand, we have to admit that our constitutional system is rather simple and clear. On the other hand, modern states have become very complex and complicated. The division of power between these constitutional state institutions does not always match such constantly growing complexity. What we see is the need to address these issues in the Constitution, issues about a number of new policy areas that are currently not covered by, for example, the Cabinet of Ministers. But there is a problem with that. Number of ministries is established by the law. Contrary to many other countries, our government does not have the right to create its own ministerial system without the support of legislator. A ministerial system that the government would deem appropriate and suitable. A system that would work. We must find ways to provide greater flexibility in our government system with regard to internal organisation of the Cabinet of Ministers. We see that, for example, areas like information space and other important public areas are actually not covered by the Cabinet of Ministers, or any other government agency. But modern democracies need to address these issues.
I would like to propose to create an additional constitutional institution in addition to the existing ones. Many, but not all, countries have such body. We need to create a national council that would primarily be responsible for two areas. National sustainable development vision beyond the general election cycles and assessment of sustainability of tabled legislative initiatives, especially the ones submitted to the Cabinet of Ministers. It is also extremely important to ensure that such sustainability is not constrained by the ruling coalition that forms the government. National council must, therefore, be independent. In fact, it must mirror the Constitutional Court which is an independent body, independent public institution. No other government body, which belongs to either of the six constitutional institutions, can be given this role. We will have a debate on the role of the new constitutional institution in the parliament in January, and I am convinced that we will be able to make progress on this issue.
IV
Dear colleagues,
In my speech I tried to briefly describe the relationship between our constitutional institutions and the distinct role these six constitutional institutions play compared to other government bodies that are either independent or subordinated to the Cabinet of Ministers. I highlighted the special role of the body of people. We can also see that our Satversme has certain features that reflect the nature of Latvia's democracy and differ from other, I would even say, almost all parliamentary democracies of the European Union. And there are different democratic models in the EU, which is based on democracy, the rule of law and core values. Soon there will only be 27 democratic models. Latvia has its unique model of democracy established in Satversme, and we can study and explore it. Just like any other parliamentary democracy, we can continuously keep improving it.
Thank you for your attention!